Mid-Atlantic Health Law TOPICS

A version of this article was published in The Daily Record on March 28, 2016.

The answer to the above question, depends in part, on the laws of the state where the claim is raised. For example, under the principle of contributory negligence, a person in Maryland seeking to hold another accountable for an injury cannot recover if the negligence of the person bringing the claim contributed in the slightest way to his or her injuries. This is a well-recognized distinction of Maryland law, and Maryland is in the minority of states that still utilize this principle of contributory negligence.

Comparative negligence, on the other hand, is a partial legal defense that reduces the amount of damages that a person can recover in a negligence-based claim. In a majority of states, which have adopted comparative negligence, the damages a person is entitled to are often reduced in proportion to the degree of that person's own negligence.

A. Tug Valley Pharmacy v. All Plaintiffs

In the recent West Virginia case of Tug Valley Pharmacy v. All Plaintiffs, a group of 29 individuals, collectively sued their physicians and pharmacies alleging that their doctors negligently prescribed narcotics, and failed to perform necessary examinations before improperly prescribing the narcotics. These patients also alleged that the pharmacies were negligent in filling prescriptions that had not been written for a legitimate medical purpose.

The patients argued that as a result of their health care providers' combined negligence, the patients became addicted to, and abused the prescribed narcotics, and the patients even went so far as to admit to engaging in various criminal activities as a result of their dependency (illegally possessing, purchasing, using and sometimes distributing the narcotics).

The physicians and pharmacies sought to have the claims of their patients dismissed, and argued that such claims should be barred under a wrongful conduct rule. They argued essentially that the patients should be prohibited from recovering due to their own admission of, and complicity in, a series of illegal and/or immoral acts.

The West Virginia Supreme Court of Appeals, however, refused to adopt such a rule. Instead, the high court held that, since West Virginia has adopted comparative fault, the issue of a party's wrongful conduct is best considered as part of the comparative fault analysis. These are highly factual inquiries, all of which require the jury's venerable analysis and respected consideration. The court said that West Virginia's comparative fault already provides for, the most legally sound and well reasoned approach to dealing with a plaintiff who has engaged in immoral or illegal conduct.

B. Conclusion

In West Virginia, at least, the Tug case affirms that a comparative fault rule will permit a patient to sue a physician or pharmacy for negligently prescribing and dispending medications, even when the patient admits to possessing, selling and distributing narcotics. When these types of cases are pursued in comparative negligence states, juries will need to decide the level of culpability of the patients, and whether their culpability or contributory negligence ought to bar their recovery, or merely limit it.

However, unlike West Virginia, Maryland does not apply a comparative negligence rule. Rather, Maryland applies the doctrine of contributory negligence. Thus, in Maryland, a patient's own negligence will operate as a total bar to his or her recovery in cases similar to Tug. This is especially true where the patient admits to his or her own culpability. Accordingly, for the present at least, this type of litigation would be unsustainable in Maryland.